The independent state legislature theory is a radical and baseless attack on the rights of voters
[link removed]

The Framers didn’t trust state legislatures.

“What led to the appointment of this Convention?” John F. Mercer of Maryland rhetorically asked his fellow delegates to the 1787 Constitutional Convention. “The corruption & mutability of the Legislative Councils of the States.”

They especially did not trust legislatures to run elections. James Madison insisted that the Constitution give Congress the power to override state laws concerning election administration. “[I]t was impossible to foresee all the abuses,” he explained. He worried that legislators would engage in vote suppression and gerrymandering. (They didn’t call it that — the word didn’t exist yet, and anyway Elbridge Gerry was standing right there! — but that’s what they meant.) “Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.”

Add in the fact that the Framers had a real thing for checks and balances, and it should be clear that they would not, under any circumstances, have given state legislatures near absolute power over elections — the lifeblood of our democracy.

And yet, that’s exactly what a small circle of scholars and activists would have us believe. According to the “independent state legislature theory” (ISLT), neither governors, state judges, nor even state constitutions can stop legislators from, for example, entrenching their power through gerrymandering or restricting voting access.

The implications of this argument should frighten you. Look, for example, at a case wending its way through the Kansas courts. Republicans, who currently hold a veto-proof legislative majority, drew a congressional map with only one competitive district. In the process, they carved up Wyandotte County, a majority-minority district since the 1980s, in an effort to oust the state’s sole Democratic representative. When public interest groups argued that the map violates several provisions of the state constitution, the state responded, essentially, that the Kansas Constitution doesn’t matter.

Where do they get the nerve? From a misreading of a single word in the U.S. Constitution. The Elections Clause gives “legislatures” the power to set the "times, places, and manner" of elections. (And — to underline how little the Framers’ trusted state legislatures — Congress “may at any time by Law make or alter such Regulations.”) Since the founding, “legislatures” has been understood to mean “state governments.”

ISLT proponents claim ahistorically that, although the Constitution doesn’t say so, this delegation to legislators was intended to free them from the procedures and constraints that govern other exercises of their power. In other words, when it comes to election administration, the governor cannot veto, the state constitution does not apply, and state judges have no power. It’s a lot to read into a single word.

The ISLT is radical, and it has no basis in any mainstream school of constitutional interpretation. From the founding through today, state constitutions and state courts have consistently checked election legislation. So, it’s no surprise that a century’s worth of Supreme Court precedent rejects the theory. But at least four sitting U.S. Supreme Court justices are ISLT-curious, so voting rights advocates must ensure the Court doesn’t backtrack.

Voters across the country are trying to take back their elections. They are amending their constitutions to demand fair maps and taking their own lawmakers to court to ensure access to the ballot. The independent state legislature theory would wipe those reforms away — along with countless state constitutional provisions that govern our elections. What’s more, it could invalidate all legislative delegations of power to administer elections. That means the secretaries of state and commissions responsible for running elections in so many states would suddenly have no authority to make decisions — even if the legislators ask them to do so.

There has been enough chaos in our elections over the last couple of years. Let’s not sow any more.

Constitution

DHS Is in Dire Need of Reform

The Department of Homeland Security was founded two decades ago with a broad and poorly defined counterterrorism mandate. A new Brennan Center report identifies five avenues for reform at the massive agency, the first in a series on how to fix DHS. From a lack of metrics measuring equity or efficacy of policies to several violations of civil rights and civil liberties, it’s clear that “it is time for DHS to rein in its discriminatory and ineffective approaches and prevent new ones from being institutionalized,” Faiza Patel, Rachel Levinson-Waldman, and Harsha Panduranga write. Read more

[link removed]

A Primer on the Insurrection Act

The Insurrection Act allows the president to deploy the military and use it for civilian law enforcement. It’s also antiquated and dangerously vague. When can a president invoke the Insurrection Act, and do they have the final say? What does invoking it allow the military to do? Is it the same as declaring martial law? A new Brennan Center explainer has the answers and recommendations for improvement. “Congress should amend the Insurrection Act to define more clearly and precisely what situations may trigger it,” Joseph Nunn writes. Read more

[link removed]

Democracy

The Federal Government Can Secure Our Elections

From new voter suppression laws to increasing distrust and sabotage in the elections system, threats are mounting against election workers and infrastructure. A new Brennan Center resource recommends concrete steps that DHS, the Justice Department, and the Election Assistance Commission can take to keep elections secure. “Given the scale of these new threats, the government’s actions have been far from sufficient. Fortunately, it is not too late for federal agencies to take meaningful action to protect election workers and our infrastructure,” Lawrence Norden, Derek Tisler, Elizabeth Howard, and Nuzhat Chowdhury write. Read more

[link removed]

Justice

A Potential Receivership at Rikers

New York City Mayor Eric Adams promised to get the long-struggling Rikers Island Jail Complex under control after the Justice Department floated the possibility of a federal takeover through receivership. Hernandez Stroud clears up some of the misconceptions around the court-mandated measure. “A receivership doesn’t entail the federal government per se coming in to run Rikers . . . The Federal Court would appoint a non-biased expert to come in,” he said. “That freedom from the political process allows them to do things that the mayor, the commissioner simply can’t for political reasons.” CBS NEWS

[link removed]

Coming Up

VIRTUAL EVENT: Is the Big Lie Protected Speech?

[link removed]

Wednesday, May 4, 6–7 p.m. ET



One-third of Americans still believe the Big Lie that Donald Trump won the 2020 presidential election. The Supreme Court has ruled that certain lies and inaccuracies are protected under the First Amendment — but when an elected official’s lies intentionally undermine our democracy, does that protection extend? And since big lies need an audience, what is the responsibility of the press in preventing their spread?

Join us for a live discussion with Ciara Torres-Spelliscy, Brennan Center fellow and professor at Stetson Law; Catherine J. Ross, law professor at George Washington University and author of A Right to Lie? Presidents, Other Liars, and the First Amendment; Katy Glenn Bass, research director at the Knight First Amendment Institute; and moderator Eugene Daniels, White House correspondent and Playbook co-author at Politico. RSVP today

[link removed]

VIRTUAL EVENT: The Independent State Legislature Theory’s Radical Threat to Democracy

[link removed]

Wednesday, May 11, 1:30–2:45 p.m. ET

Under the independent state legislature theory, state legislatures would have exclusive power to make election law, unconstrained by state constitutions, state courts, state governors — and maybe even federal law. Join us for a live discussion about it with Vikram D. Amar, dean of the University of Illinois School of Law; Leah Litman, professor at the University of Michigan Law School; Carolyn Shapiro, co-director of the Institute on the Supreme Court at Illinois Tech; Kate Shaw, co-director of the Floersheimer Center for Constitutional Democracy at Cardozo Law; and moderator Wilfred Codrington III, Brennan Center fellow and professor at Brooklyn Law School. RSVP today

[link removed]

Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

[link removed]

News

Ted Johnson on Black Republicans and conservatives // WASHINGTON POST

[link removed]

Michael Li on the latest in New York’s redistricting court battle // NEW YORK TIMES

[link removed]

Eliza Sweren-Becker on automatic voter registration in Georgia // ATLANTA JOURNAL-CONSTITUTION

[link removed]

Feedback on this newsletter? Email us at [email protected]

[link removed]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

Support Brennan Center

[link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]